dissenting.
| j¿There are many reasons why this case should be reversed. First and foremost, the majority fails to address, except in a cursory fashion, the gravamen of the Adamses’ second major point. The Adamses assert that the proof that their dwelling did not comport with FHA regulations was incompetent because Moody was not qualified to so opine. Further, the regulations, which could speak for themselves, were not introduced into evidence. While it is true that Moody testified, in a conclusory fashion and over the Adamses’ objection, that the house did not meet FHA standards, this hardly constitutes “uncontradicted evidence.” See Dacus v. Burns, 206 Ark. 810, 177 S.W.2d 748 (1944). However, even if the majority was able to correct these deficiencies in its opinion, it cannot escape the fact that there is merit in the Adamses’ argument.
When there is a default judgment entered in, for instance, a personal injury case, liability is deemed established and only damages need be proven. This process, however, does not easily fit the case at bar, where the relief requested is not monetary, but injunctive. The Adamses were ordered to make their dwelling conform to FHA regulations. But as noted previously, the regulations were not entered into evidence (and no request to take judicial notice of the regulations was made). Further, there was no competent testimony as to how the dwelling did not conform to FHA regulations.
This situation is of great consequence' because the judgment can only be enforced with the trial court’s contempt power; there is no monetary judgment to execute. In the | ifievent that a contempt petition is necessary, the Adamses have not been told in the order currently before us what they were required to do to make their house conform to FHA regulations. To enforce this order, the trial court would be required to first determine what the FHA regulations require and then how the Adamses’ house does not conform to these regulations. This is the proof that should have been presented in the instant case.
The same problem applies to the trial court’s order that the Adamses remove a storage shed that is nearer than five feet from the property line. There is no proof, however, of where the property line was located. How will any court know if the Adamses have complied with its directive? Before a person can be held in contempt for violating a court order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands. Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2002). In effect, the trial court has entered an unenforceable order. I would reverse this case and order the trial court to conduct a full merits hearing on this issue.
I also find significant problems with the majority’s handling of the Adamses’ first point. First, it is worth noting that this case is not a typical default judgment where, after good service, a defendant never acknowledges that a lawsuit has been filed against him or her. Indeed, the Adamses did respond, albeit not with a typical “answer.” Accordingly, I find merit in the Adamses’ argument that the filing of their motions for extension of time to file an answer was a sufficient response so as to prevent a default. Arkansas Rule of Civil Procedure 55(a) states:
hgWhen Entitled. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, judgment by default may be entered by the court.
The reporter’s note to Rule 55 indicates that the phrase “otherwise defend” in Rule 55(a) means the filing of motions, which is equivalent to “appearing.” (The commentary cites Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987), which so holds.) “Appearance” is defined as “A coming into court as party to a suit, either in person or by attorney, whether as plaintiff or defendant. The formal proceeding by which a defendant submits himself to the jurisdiction of the court.” Black’s Law Dictionary 63 (6th ed.1991). The majority attempts to sidestep this issue by citing Friend v. Goslee, 276 Ark. 484, 637 S.W.2d 568 (1982), for the proposition that a motion for additional time is not a substitute for filing an answer. This authority, however, is inapposite as Goslee clearly does not answer the question. Moreover, Gos-lee expressly states that Rule 55 was not raised at the trial court or on appeal and therefore was not considered. Although the trial court had within its discretion the authority to strike the Adamses’ affirmative defenses and deny permissive joinder of the Adamses’ counterclaim,11 believe it clearly erred by not allowing this case to proceed on the merits and requiring Moody to prove his case.
11sHowever, even assuming for argument’s sake that the trial court was correct in granting a default judgment, I believe its reasons for refusing to set it aside are not sound, and the majority fares no better.' I believe that the Adamses demonstrated legitimate defenses and meritorious claims and met the criteria set forth in Arkansas Rule of Civil Procedure 55. In their answer, the Adamses raised laches, statute of limitations, estoppel, real party in interest, waiver, and lack of subject-matter jurisdiction as defenses. The Adamses also made factual assertions in support of these defenses. I have found no case that states that he must do more. I believe the majority’s reliance on Abercrombie v. Richards, 248 Ark. 1322, 455 S.W.2d 887 (1970), is misplaced. While Abercrombie does state that a litigant must do more than make a “naked allegation that it has a meritorious defense,” I am only able to glean from the case that the appellant merely said he had a “meritorious defense,” without informing the trial court what those defenses were. Obviously Rule 55 does not require a trial on these defenses before the defenses can be asserted in the real trial.
Finally, I believe that there is merit to the Adamses’ argument that Moody’s motion for a default judgment was “technically deficient” and should be set aside. In his certificate of service for his Motion for Default Judgment, Moody recites that,
This is to certify that a copy of the foregoing document has been served on the [sic] John Adams and Marie Adams, his wife by mailing a copy to them at 1251 Vistaview, Cove, Memphis, TN 38127, postage prepaid, this 17th day of May, 2006.
119The same certificate of service was attached to Moody’s brief in support of his motion. However, the transmittal letter was dated May 22, 2006, and the envelope was postmarked May 24, 2006.
The majority suggests that this case is simply controlled by Rule 5 of the Arkansas Rules of Civil Procedure, and parrots Moody’s assertion in disposing of this issue by stating that the Adamses suffered no prejudice. However, a closer reading of Rule 5 indicates that this issue is not so easily taken care of. Rule 5 states:
(a) Service: When Required. Except as otherwise provided in these rules, every pleading and every other paper, including all written communications with the court, filed subsequent to the complaint, except one which may be heard ex parte, shall be served upon each of the parties, unless the court orders otherwise because of numerous parties. No service need be made upon parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served in the manner provided for service of summons in Rule 4. Any pleading asserting new or additional claims for relief against any party who has appeared shall be served in accordance with subdivision (b) of this rule.
By concluding that Rule 5 authorized Moody to serve his motion for default judgment by regular mail, the majority has acknowledged that the Adamses had appeared, so granting a default judgment was not appropriate.
However, even assuming that service by regular mail was appropriate in this case, I cannot subscribe to the majority’s approval of Moody’s demonstrably false affidavit of service, by its conclusion that the Adamses suffered no prejudice. I note that the supreme court’s latest case regarding service — admittedly of the summons and complaint under Rule 4 of the Arkansas Rules of Civil Procedure—Trusclair v. McGowan Working Partners, 2009 Ark. 203, 306 S.W.3d 428, suggests that lack of prejudice is not dispositive and that compliance with our rules for service must be “exact.”
I believe that the best course of action would be for this court to reverse this case.
. Although the trial court had the authority to strike the Adamses’ counterclaim, it is puzzling that the trial court would choose to do so. The counterclaim sought monetary and injunctive relief against Moody for harassment as a declaratory judgment concerning new restrictive covenants that Moody had sponsored. It was clearly a permissive counterclaim, but if the trial court had even a passing interest in judicial economy it seems logical that the counterclaim could have been taken up while both parties were in court.